P L D 1959 (W (PLP)

KAIKAUS, J.-‑‑Writ Petition No. 518 of 1958 there is a challenge to the validity of Ordinances Nos. XII and XVI of 1958 by which the Provincial Government has indefinitely post poned elections to the Corporation of the City of Lahore and has substituted in place of the Corporation a body which consists solely of persons nominated by the Provincial Government. The main ground of attack is that the promulgation of the Ordi nances is a part of the election campaign of the Republican Party for the coming general elections in the country‑a gross abuse of power. In Writ Petitions Nos. 520 and 521 of 1958, similar action of the Provincial Government in respect of the District Boards by means of Ordinances Nos. XI and XII of 1958 is the subject of attack. This judgment will deal with all the three writ petitions.

2. To begin with Writ Petition No. 518 of 1958, I will state the necessary facts. The Corporation of the City of Lahore (hereinafter called the Corporation) is a creation of the Corporation of the City of Lahore Act, 1941 (hereinafter called the Act) and is much like a municipal committee. Its authorities are the Corporation, the Standing Committee and the Chief Executive Officer. The executive authority vests in the Chief Executive Officer subject to the control of the Corporation and the Standing Committee. Councillors of the Corporation, 70 in number, are all elected. The term of office of the Councillors is three years, but it may be extended for a maximum period of one year by the Provincial Government. On the expiry of the term of office, the members vacate their seats, but the Standing Committee, by virtue of section 29, as it originally stood, would continue to function till the new Councillors assumed office. The Provincial Government can, if it is satisfied that the Corporation cannot perform its functions, supersede it (section 393) and all powers of the Corporation and the Standing Committee as well as the Chief Executive Officer vest in such a case in an Administrator to be appointed by the Provincial Government. The Provincial Govern ment may constitute a new Corporation when it supersedes a Corporation, but there was no provision in the Act till September 1956 obliging it to do so.

3. The last Corporation took its oath of office on the 20th of July 1953 and it was entitled to continue till the 19th of July 1956. About six months before its‑ term of office expired, it passed a resolution requesting the Government to hold elections to the Corporation as soon as possible. The Provincial Govern ment did direct the preparation of new rolls for the purpose of fresh elections but the rolls prepared were materially inaccurate and their validity was challenged in Writ Petition No. 168 of 1956, Malik Ghulam Nabi v. Government of West Pakistan. The writ petition succeeded and the High Court, holding that the rolls were inaccurate, directed the holding of elections on the basis of new and correct rolls. Fresh electoral rolls were, how ever, not prepared in time, with the result that the term of office of the members expired on 19th July 1956 and the Corporation came to an end. There was at that time no provision in the Act as to what was to be the effect if the term of office of the members expired without fresh councillors having been elected. On the 15th of September 1956 was promulgated Ordinance No. XX of 1956 by which a new section 395‑A was added to the Act. This section provided that the effect of the expiry of the term of office of the councillors would be the same as that of supersession. At the same time, by this Ordinance section 29 of the Act, which enabled the Standing Committee to function in case of the expiry of the term of the councillors, was amended and it was provided that if the term of office of the councillors was not extended, the Standing Committee would cease to func tion. As a result of this Ordinance an Administrator was appointed. Ordinance XX of 1956 was substituted by Act XIV of 1957 published on the 28th of February 1957. This Act not only reproduced what was contained in the Ordinance but added a proviso to section 395‑A by virtue of which the Government was under an obligation in case of expiry of the term of office of the members of the Corporation to reconstitute the Corporation within a period of six months from the date of such expiry or the date of commencement of the Act whichever be later.

4. Some time later, the Minister for Local Bodies consti tuted, by his verbal orders, what was called an Advisory Com mittee. The apparent function of this Advisory Committee was to advise the Administrator in the exercise of his functions. At the first meeting of this Advisory Committee, the Minister for Local Bodies presided and Syed Hadi Ali Shah, the Chief of the Republican Party of Lahore, was elected as its Chairman. This Advisory Committee was attacked in Writ Petition No. 29 of 1956 filed by Mr. Qaseemuddin, who is petitioner No. 1 in the pre sent petition. It was alleged in that petition that the Advisory Committee, which existed neither in the Act nor in the rules, had been illegally constituted with the object of installing in power ministerial stooges and that the members of the Committee had been nominated by Syed Hadi Ali Shah who had sent a list of members of the Advisory Committee to the Government and the Government had just accepted that list. That writ petition came up for hearing before me and Shabir Ahmad, J. Going through the records of the Corporation we found a tussle going on between the Advisory Committee and the Administrator. The members of the Advisory Committee claimed that they had a right, according to their understanding with the Government, to control the action of the Administrator. The Administrator had in actual practice refused to act according to the dictates of the Advisory Committee though he may not have said so openly. We held that the Advisory Committee had no existence in the eye of law and its expenses could not be met from the funds of the Corporation. There was also a prayer in that petition that elections to the Corporation be expedited. The Government took up the position that it was very anxious to hold elections as soon as possible but that in so doing it was prevented by the judgment of the High Court in what was called Parveen Zohra's case. That case related to the District Board of Lyallpur. According to the rules framed under the District Boards Act some special constituencies had been provided for women but women had been deprived of the right to vote in the general constituencies. The High Court held that the rules offended against Article 5 of the Constitution which Article guarantees equality of all persons before the law. An appeal against the decision of the High Court was pending before the Supreme Court. In view of this case, in spite of the fact that elections were already overdue, we passed an order to the effect that elections be held within one month of the decision of Parveen Zohra's case. Arguments before the Supreme Court in Parveen Zohra's case concluded on the 26th of April 1958. The case was ultimately decided by the Supreme Court on the 15th of June 1958 and the women's right to vote in the general con stituencies was negatived so that the electoral rolls of the Corporation which already existed did not need any addition. But before the judgment was announced began events which have given rise to these writ petitions.

5. It is said that the action of the Republican Party which is now the subject‑matter of attack is the second attempt on its part illegally to assume control over municipal affairs. The first attempt, the constitution of the Advisory Committee, failed because it had no sanction in law. This attempt has been made by means of Ordinances in order to give it the semblance of legality and it is much wider in its scope for it embraces all local bodies. By the impugned Ordinances Nos. XI, XII and XVI of 1958, the Republican Party has contrived to instal in the local bodies which are not at present functioning (and more than 50 per cent. are not functioning) its own partisans. The result would be that these local bodies would be controlled by the Republicans and the advantage of such a situation in the next general elections must indeed be great.

6. Ordinances Nos. XI and XII of 1958 were promul gated on the 9th of May 1958. 1 reproduce below, in the first place, Ordinance XI along with the provisions which it amends as they stood before they were amended by this Ordinance :‑ " Whereas it is expedient to amend the Punjab Municipal Act, 1911, the North‑West Frontier Province Municipal Act, 1950, and the Punjab District Boards Act, 1883, for the pur poses hereinafter appearing ; And whereas the Provincial Assembly of West Pakistan is not in session, and the Governor of West Pakistan is satisfied that circumstances exist which render immediate action necessary ; Now therefore, in exercise of the powers conferred by Article 102 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :‑

1. This Ordinance may be called the Punjab and North- West Frontier Province Municipal and District Boards Laws (West Pakistan Amendment) Ordinance, 1958.

2. In clause (b) of subsection (2) of section 238 of the Punjab Municipal Act, 1911, between the words ` person ' and ` as ' the words ` or persons ' shall be inserted.

3. In clause (b) of subsection (2) of section 229 of the North‑West Frontier Province Municipal Act, 1950, between the words ` person ' and ` as ' the words ` or persons ' shall be inserted.

4. In clause (b) of section 52 of the Punjab District Boards Act, 1883, as applicable to the districts of Campbellpur, Dera Ghazi Khan, Gujranwala, Gujrat, Jhelum, Jhang, Lahore, Lyallpur, Mianwali, Montgomery, Multan, Muzaffargarh, Rawalpindi, Shahpur, Sheikhupura, Sialkot, Bahawalpur, Bahawalnagar, Rahimyar Khan, Bannu, Dera Ismail Khan, Hazara, Mardan, Kohat and Peshawar between the words ` such ' and ` persons ' the words ` person or ' shall be inserted." Section 238 of the Punjab Municipal Act‑ " 238, (1) Should a committee be incompetent to perform, or persistently make default in the performance of, the duties imposed on it by or under this or any other Act, or exceed or abuse its powers, the local Government may, by notification, in which the reasons for so doing shall be stated, declare the committee to be superseded. (2) When a committee is so superseded, the following conse quences shall ensue :‑ (a) All members of the committee shall, from the date of the notification, vacate their seats. (b) All powers and duties of the committee may, until the committee is reconstituted, be exercised and performed by such person as the local Government may appoint in that behalf. (c) All property vested in the committee shall, until the committee is reconstituted, vest in the local Government for the Province. (3) The Government may, if it shall think fit, at any time constitute another committee in the place of any committee superseded under this section." The language of section 229 of the N.‑W. F. P., Municipal Act is similar to that of section 238 of the Punjab Municipal Act, reproduced above. Section 52 of the Punjab District Boards Act.‑ "

52. When a district board or local board is superseded under section 51, the following consequences shall ensue‑ (a) All members of the board shall, from the date of the notification, vacate their offices as such members. (b) All powers and duties of the board may, until the board is reconstituted, be exercised and performed by such persons as the Provincial Government appoints in that behalf. (c) Where a district board is superseded, all property vested in it shall, until it is reconstituted, vest in the local Government for the Province." This Ordinance authorises the Provincial Government to appoint any number of persons in whom shall vest all the powers that vested in a local body which stands superseded.

7. I reproduce next Ordinance XII of 1958 :‑ " Whereas it is expedient to constitute a commission for making recommendations to the Government with regard to certain matters connected with the elections to local authorities in the Province of West Pakistan, and to provide for powers (a) to postpone the elections to local authorities and to cancel the elections proceedings that have been held ; and (b) to extend term of office of such members whose term is about to expire ; And whereas the Provincial Assembly of West Pakistan is not in session and the Governor of West Pakistan is satisfied that circumstances exist which render immediate action necessary ; Now, therefore, in exercise of the ' powers conferred 'by Article 102 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :‑

1. This Ordinance may be called the West Pakistan Local Authorities Election Commission Ordinance, 1958.

2. In this Ordinance, unless the context otherwise requires, the following expressions shall have the meanings hereby respectively assigned to them, that is to say‑ (1).' Commission ' means the West Pakistan Local Authori ties Election Commission constituted under this Ordinance ; (2) ` Government ' means the Government of the Province of West Pakistan.

3. As soon as may be after the commencement of this Ordinance, Government shall set up a Commission to be known as the West Pakistan Local Authorities Election Commission. 4. (1) The Commission shall consist of a Chairman and such number of members as may be fixed by Government in this behalf. (2) The Chairman and the members of the Commission shall be appointed by Government.

5. The Commission, within such period as may be fixed by Government, shall study and investigate and make a report to Government on the following matters, namely :‑ (1) the basis for determining the strength of the various local authorities ; (2) the local areas the limits whereof shall be extended before elections are held to the local authorities concerned ; . (3) the basis on which the constituencies for election to various local authorities shall be delimited ; (4) the authority which shall be responsible for the delimita tion of constituencies, and the manner in which such authority shall work ; (5) the manner in which women shall be represented on local authorities ; (6) the special interests which shall be represented on various local authorities, and the manner in which such interests shall be represented ; (7) the manner in which election programmes shall be pre pared and notified; the items to be included in such programmes ; and the steps that shall be adopted to ensure compliance with such programmes ; (8) the authority which shall be responsible for the conduct of elections ; the powers to be exercised by such authority ; and the manner in which such authority shall be supervised and controlled ; (9) The manner in which the registers of electors for elections to local authorities shall be prepared and kept up‑to‑date ; whether, and if so how, the registers of electors prepared for elections to the Provincial Assembly of West Pakistan can be adapted for the purposes of elections to local authorities ; and the manner of, and, the authorities for, the determination of objections regarding entries in the registers of electors ; (10) Whether elections to local authorities shall be held simultaneously, or whether elections to different local authorities shall be held on different dates ; (11) the form of the nomination papers for candidates, the manner in which such nomination papers shall be subscribed to, presented, and scrutinised ; and the principles which shall govern their scrutiny ; (12) the principles which shall govern the selection of polling stations, and the manner in which the polling programmes shall be notified ; (13) the manner in which polling shall be conducted at the polling stations ; the powers and duties of the polling staff ;and measures and steps which shall be adopted to ensure free and fair elections ; (14) the manner in which the votes shall be counted ; the principles which shall regulate the declaration of any vote as invalid ; and the manner in which the result shall be declared and notified ; (15) the definition of corrupt practices, material irregularities, and other election offences, and the manner in which such offences shall be taken cognizance of ; (16) the manner in which election petitions shall be pre sented, and disposed of, and the period during which decision shall be taken on such petitions ; (17) the provisions of the Representation of tile People Ac‑. 1957, which shall be adopted for the purposes of elections to local authorities ; (18) the manner in which the laws and rules relating to election to local authorities in different parts of the Province shall be codified and made uniform ;and (19) any other matter which Government may specify, or which the Commission may deem necessary as affecting elec tions to local authorities. 6. (1) The Chairman and the members of the Commission may be paid such remuneration as may be fixed by Government. (2) All staff' required by the Commission shall be appointed by Government. (3) The entire cost of the Commission and its staff shall be met by the local authorities in such proportion as may be fixed by Government. 7. (1) The Report presented by the Commission shall be notified in the Official Gazette. (2) As soon as may be after the presentation of the report of the Commission, but not later than three months of such presentation, Government shall pass order with regard to the various recommendations made by the Commission, and a copy of such order shall be published in the Official Gazette.

8. Notwithstanding anything to the contrary contained in any law for the time being in force, or any judgment, decree or order of any Court‑ (a) no election to any local authority shall be held until the system of elections to local authorities has been reformed in the light of the recommendations of the Commission, and the orders of Government passed thereon, provided that the prohibition shall not extend beyond six months of the final order notified by Government under subsection (2) of section 7, and during such period, Government shall make all necessary arrangements to ensure that all elections to local authorities as are due, are completed without further delay ; and (b) all election proceedings which have been taken or are being taken with regard to elections to any local authority shall, on the commencement of this Ordinance be deemed to have been cancelled, and any rights which may have accrued to any person as a result of such election proceedings shall be deemed to have been extinguished: Provided that nothing contained in this section shall apply to such elections as have been completed before the commence ment of this Ordinance.

9. Where the term of office of the members of a local authority is due to expire after the commencement of this Ordinance, Government may, notwithstanding anything to the contrary contained in any other enactment for the time being in force, by notification extend such term till elections are com pleted under section 8.

10. No suit or other legal, proceedings shall lie against Government or any person or authority for any loss or damage of any kind whatsoever caused by the cancellation of any election proceedings under section 8." The object and effect of this Ordinance is that elections to the local bodies stand indefinitely postponed till the Government has not only received the report of the Commission but has taken action on it.

8. Ordinance XVI of 1958 makes an amendment to the Corporation Act similar to that which Ordinance XI of 1958 makes in the Acts relating to other local bodies. It runs as follows :‑ "Whereas it is expedient to amend the City of Lahore Corporation Act, 1941, for the Purposes hereinafter appearing ; And whereas the Provincial 'Assembly of West Pakistan is not in session, and the Governor of West Pakistan is satisfied that circumstances exist which render immediate action necessary ; Now, therefore, in exercise of the powers conferred by Article 102 of the Constitution, the Governor of West Pakistan is pleased to make and promulgate the following Ordinance :‑

1. This Oidinance may be called the City of Lahore Cor poration (West Pakistan Amendment) Ordinance, 1958.

2. In section 29 of the City of Lahore Corporation Act, 1941, (hereinafter called the principal Act) for the word `Administrator' the words `Administrative Committee' shall be substituted.

3. For section 394 of the principal Act the following shall be substituted‑ 394. (1) When the Corporation is superseded under section 393, the following consequences shall ensue‑ (a) all members of the Corporation shall, from the date of the notification, vacate their seats ; (b) until the Corporation is reconstituted‑ (i) all powers and duties of the Corporation shall be exercised and performed by a Committee, hereinafter called the Administrative Committee consisting of such persons and such number of them as the Provincial Government may from time to time appoint in that behalf ; and (ii) all powers and duties of the Mayor and the Deputy Mayor shall be exercised and performed by a Chairman and Vice‑Chairman to be elected by the members of the Adminis trative Committee from among themselves at the first meeting of the Committee to be held on a day and at a time and place appointed by the Provincial Government; (c) all property vested in the Corporation shall, until the Corporation is reconstituted, vest in the Administrative Com mittee in trust for the purposes of this Act. (2) The Administrative Committee shall be a, corporate body which may sue and be sued in the name of `The Administrative Committee of the City of Lahore': (3) The Administrative Committee shall conduct its business as if it were the Corporation and its members were the Councillors; provided that the quorum for special meetings shall be one‑half and for general meetings one‑third of the total number of members constituting the Administrative Committee for the time being. (4) The Administrative Committee, the Chairman and Vice- Chairman shall be subject to the control of the Provincial Government and such other person or persons as they may direct and shall be subject also to all other restrictions, limitations and conditions imposed by this Act on the Corporation, the Mayor and Deputy Mayor respectively. If there is any doubt or difficulty about the application of any of the provisions of this Act, or any rules or by‑laws made thereunder, to the Administrative Committee or its Chairman or Vice‑Chairman, the matter shall be referred to the Provincial Government, whose decision shall be final, and shall not be questioned in any Court of law. (5) The Provincial Government at any time may‑ (i) remove any member of the Administrative Committee; (ii) appoint a member to fill up any casual vacancy on the Administrative Committee; (iii) vary the total number of members of the Administrative Committee; or (iv) replace one Administrative Committee by another Administrative Committee. (6) The Provincial Government may, if they think fit, at any time constitute another Corporation in the place of the Corporation superseded under section 393.

4. In section 395 of the principal Act‑ (i) in subsection (2) for the words `The Administrator of the City' the words `An officer appointed by the Provincial Govern ment in this behalf' shall be substituted ; and (ii) in subsections (4), (5), (6) and (7), for the words `Administrator of the City' wherever occurring the words `Administrative Committee' shall be substituted.

5. In section 395‑A of the principal Act, the colon preceding the first proviso shall be replaced by a full stop and the two provisos shall be omitted." This Ordinance was promulgated on the 4th of June 1958: Ordinarily this Ordinance too should have been promulgated along with Ordinances XI and XII for the words "local bodies" in Ordinance XII include a Corporation. The reason why it was not simultaneously promulgated is not known. This Ordinance empowers the Government to appoint in place of the Administrator an Administrative Committee. It also withdraws the condition introduced by Act XIV of 1957 that the Govern ment was bound to reconstitute the Corporation within a period of six months. While Ordinance XVI has an effect similar to that which Ordinance XI has with respect to other local bodies, it has some distinguishing features. It provides for the incorporation of the Administrative Committee and for the conduct of its business. It enacts too that its Chairman shall have the powers of the Mayor and the Vice Chairman the powers of the Deputy Mayor. In Ordinance XI of 1958 there is no provision at all as to the method by which persons appointed and put in control of the affairs of the local bodies are to function, nor is there any provision that the President of the body shall have powers like the President of the Committee. The persons appointed under Ordinance XI are not referred to as a body and have not been incorporated.

9. These Ordinances are attacked on three grounds. The first is that they are the outcome of an abuse of power. Under Article 102 of the Constitution Ole Governor can promulgate an Ordinance only if he is satisfied that circumstances exist which render immediate action necessary and he can only promulgate "such Ordinances as the circumstances appear to him to require". The power of promulgating an Ordinance has been created to meet an emergency and the exercise of this power in a case where no emergency exists is an abuse and a mala fide act. Although Article 102 refers to the Governor, on account of Article 71 (7) the Governor acts in this matter only on the advice of the Cabinet and it is only when the Cabinet is satisfied of the existence of , an emergency that it can get an Ordinance promulgated in order to‑ meet the emergency. It is contended that the cabinet was never satisfied of the existence of any, emergency nor are the Ordinances intended to meet an emergency. They have been promulgated in order to help the Republican Party in the coming general elections. The second ground of attack is that the Ordinances were not within the legislative competence of the Provincial Legislature at all, for entry No. 15 in the Provincial List, on which reliance is placed by the Government, envisages only self‑Government and the appointment of persons who are to control local bodies is no self‑Government. The third ground of attack is that the appointment of the members of the Administrative Committee is mala fide. It is alleged that with the exception of four named persons, the rest of the members of the Administrative Committee are all Republicans. Six out of them are members of the Cloth Federation of which Syed Hadi Ali Shah, the Chief of the Republican Party in Lahore, is the President and even the legal adviser of that Federation, Mr. Karamat Ali, has been nominated a member. Twenty‑two out of the members are alleged to belong to Constituency No. 5 of the Corporation, from which Constituency Syed Hadi Ali Shah intends to stand in the next election to the Provincial Legislative Assembly. It is also pointed out that ten out of the members are persons who were defeated in the last elections to the Corpora tion. The Government has not thought fit to appoint those who defeated them.

10. The respondents to the petition are the Province of West Pakistan, the Corporation, and the sixty members of the Administrative Committee. The Province of West Pakistan has filed a written statement, while out of the members of the Administrative Committee fifty‑six have filed a joint written statement. The Province of West Pakistan has denied the allegations of mala fides. It has alleged that for reasons which were explained in a Government communique issued on the 9th of May 1958 the appointment of an Election Commission had become necessary. That communique says that the law relating to elections to local bodies needed amendment in order that the principles accepted .in the People's Representation Act of 1957 be applied to it and also there was need of a uniform law governing elections to all local bodies in West Pakistan. Neither the written statement nor the communique alleges, however, that there were circumstances which rendered immediate action necessary., It is alleged in the written statement that the provision for the constitution of the Administrative Committee in place of ‑the Administrator is more democratic. As regards actual appointment, it is alleged that the intention was to make the Administrative Committee representative of all shades of opinion. The joint written statement of the members follows similiar lines. It is supported by the affidavit of Syed Hadi Ali Shah, Syed Hadi Ali Shah does not say that the statement that only four out of the members of the Administrative Com mittee are non‑Republicans is untrue nor does he name any member not included amongst the four mentioned by the peti tioners who may be a non‑Republican. He does not deny that six members of the Cloth Federation of which he is the President as well as the legal adviser of that Federation have been nominated as members, but says he is "not instrumental in getting any member of the Administrative Committee selected". He does not deny that twenty‑two members are from Constituency No. 5 but says he has not yet made up his mind as to whether he will stand from that Constituency.

11. The respondents contend as regards the first ground of attack on the Ordinances that the Ordinances are neither the result of mala fide action nor is it within the province of Courts to question the bona fides of an Ordinance. They contend as regards the second ground that the Ordinances were within entry No. 15 and in any case within the residuary powers of the Provincial Legislature. The third ground they contest on facts.

12. The main question in this case, it appears to me, is whether an Ordinance promulgated by, the Governor under Article 102 of the Constitution is liable to attack on the ground of mala fides‑that he was not satisfied at all of the 'existence of any emergency, nor was he legislating in order to meet the emergency and that the power has been assumed only in order to help the Republican Party. If this question be answered in the affirmative, this petition should succeed for there is little doubt in my mind on the question whether the promulga tion of the Ordinances was in fact mala fide.

13. The argument in support of the proposition that an Ordinance is liable to attack on the ground of mala fides is simple enough. When it is said that the Ordinance has been promulgated mala fide, it means this: the satisfaction of the Governor (rather of the Cabinet) as to the existence of "circum stances which render immediate action necessary", which is a condition precedent to the exercise of legislative powers, is lacking ; or, the legislation is not such as appears to be required by the circumstances, which too is a condition, precedent; or it may mean that both conditions precedent are wanting. Courts are entitled to go into the question of the validity of Ordinances. That is not a disputable proposition. If there be a condition precedent to the exercise of the power of promulgating an Ordinance, the Courts can obviously inquire into whether such condition precedent in fact existed or not. It is for the other party to show that in this particular case there is some legal bar to an inquiry by the Court as to a condition precedent.

14. That the conditions mentioned above are conditions precedent is not open to serious argument. They are so mentioned in Article .102. It is only when the Governor is satisfied of the existence of an emergency that he can promulgate an Ordinance. It is true that it is his own satisfaction which is needed. The Court may not be satisfied on the material on which he was satisfied. That is of no consequence. But it is an essential condition that he should be satisfied. Similarly he can promulgate g only such Ordinances as appear to him to be required for meeting the emergency. True it should appear to him and it does not matter whether it appears or does not appear to anybody else, 'but it is certainly 4 condition that it should appear to him. Article 102 does not say he can act when he says be is satisfied or when he says it appears to him. The state of mind of a person, as Lord Wright observed in Greent v. Home Secretary (1941 (111) All E R 388) is as much a fact as the condition of his digestion. If a person says he is satisfied or says it appears to him, it may be difficult to prove that in fact he is not satisfied or that in fact it does not appear to him,' but the inquiry cannot for that reason be prohibited.

15. The learned Attorney‑General, who appeared for the Province of West Pakistan, conceded with respect to the first of these conditions precedent‑that the Governor was satisfied that circumstances existed which rendered immediate action necessary‑was one which should be inquired into as a matter of law though he contended that it would be very difficult for any person to prove that the Governor was in fact not satisfied. The other respondents, the members of the Administrative Committee, however, did not concede that this matter was justiciable.

16. Three arguments have been put forward in support of the contention that such an inquiry is barred :‑ (i) Motives of the legislature cannot be questioned and the same principle should apply to an Ordinance. (ii) The Governor is bound to act on the advice of his Cabinet and, therefore, no question of his mala fides arises. (iii) Article 213 of the Constitution makes the action of the Governor immune from attack.

17. I take up the first argument. The proposition that motives of the legislature cannot be the subject of inquiry is not liable to be disputed. However, the question is whether this proposition would affect the point in dispute. In order to determine whether it would affect the point in dispute, we should know the reasoning on which this proposition is based and we should then proceed to consider whether such reasoning applies to the case of an Ordinance. One would expect that the judgments which dealt with immunity of Acts of the Legis lature from an attack on the ground of improper motives would explain the reason for this rule, but no judgment has been cited at the bar in which there may be a discussion of the basis of the proposition. Mr. Brohi has cited page 554 of Craies on Statute Law to show that any attempt at discovering the reasoning behind this rule from the judgments will be futile. I reproduce below the paragraph to which he has referred :‑ "

6. It is said by Blackstone that a private Act, `when obtained upon fraudulent suggestions, hath been relieved against'. This proposition is adopted by Cruise, who, however, points out that formerly any Act of Parliament, private as well as public, `was considered as an assurance of so high a nature that, although it was obtained by fraud, yet it could not be relieved against by any of the Courts of law or equity, but only by the power that made it, that is, by Parliament'. In support of Blackstone's proposition, Cruise gives an abstract of Mackenzie v. Stuart, decided by the House of Lords on appeal from the Court of Session in 1754 ; and cites Biddulph v. Biddulph, decided by the House of Lords in 1790. In neither of these cases, however, is the doctrine discussed, nor are any reasons given for the decision. The question has never been seriously discussed in any modern case. In Stead v. Garey, Creswell, J. said : It is something new to impeach an Act of Parliament by a plea stating that it was obtained by fraud' ; and in Waterford Ry. v. Logan, the Court refused to allow a plea alleging that `the Act was obtained by the fraud of the plaintiffs'. The proper course to adopt when a Bill or clause is smuggled through Parliament is to bring in a Bill to repeal the clause in question. And the decision of the Judicial Com mittee in Labrador Co. v. R. seems finally to dispose of the notion that it is any ground for disregarding a statute to say that the Legislature was deceived. Their Lordships stated that if a mistake had been made only the Legislature could correct it, for a Court of Law must give effect to an enactment as it stands." On behalf of the respondents, only the judgment of the Supreme Court of Pakistan in The Punjab Province v. Khizar Hayat Khan Tiwana (P L D 1956 F C 200) has been cited in which there is an observation to the following effect :‑ "In such matters the Courts are not to question the motives or policy of the legislature or to refuse to give effect to legis lation merely because it appears to be harsh or unreasonable or vindictive. Their plain duty is to ascertain the intention of the legislature and to carry it out irrespective of the consequences that may ensue to a particular party." Here too there is only an observation without any discussion. I have, however, found an American case in which there is an explanation of the reason why we cannot go into the motives of the legislature. That case is Soon Hing v. P. Crowley, Chief of Police of the City of San Francisco (113 U S 703), where Mr. Justice Field delivering the opinion of the Court said :‑ "The principal objection, however, of the petitioner to the ordinance in question is founded upon the supposed hostile motives of the supervisors in passing it. The petition alleges that it was adopted owing to a feeling of antipathy and hatred pre vailing in the City and County of San Francisco against the subjects of the Emperor of China resident therein, and for the purpose of compelling those engaged in the laundry business to abandon their lawful vocation, and residence there, and not for any sanitary, police or other legitimate purpose. There is nothing, however, in the language of the ordinance, or in the record of its enactment, which in any respect tends to sustain this allegation. And the rule is general, with reference to the enactments of all legislative bodies, that the Courts cannot inquire into the motives of the legislators in passing them, except as they may be disclosed on the face of the Acts, or inferable from their operation, considered with reference to the condition of the country and existing legislation. The motives of the legislators, considered as the purposes they had in view, will always be presumed to be, to accomplish that which follows as the natural and reasonable effect of their enactments. Their motives, considered as the moral inducements for their votes, will vary with the different members of the legislative body. The diverse character of such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth, precludes all such inquiries as impracticable and futile." The true reason why the motives of the legislature cannot be questioned is the impossibility of an inquiry into the motives of the large number of legislators and the chaos which would be created if evidence were allowed to be led as to such motives. If evidence was led as to motives of the legislators, there would be D an interminable inquiry with respect to the validity of every Act and it is obvious that the inquiry would be a most unsatisfactory method of ascertaining the truth. One thing to remember is that a legislator 'who has in fact cast a perfectly valid vote may when lie enters the witness‑box, make a false statement in order to favour a party, and say that he voted for an improper object. The reason why inquiry into motives is not allowed is similar to that which prevents the Court from recording oral evidence as to the intention of the legislators when a question of interpretation of an Act is involved. Words in an enactment are to be interpreted according to the intent of those that made it. If it was proved that out of two meanings that a word has, all the legislators intended on particular meaning, the Court would have to adopt that meaning, but the Court does not allow oral evidence of such intention because such a procedure is neither practically possible nor fruitful. The Courts have selected out of the material on which an inference as to intention could be based some that can conveniently be referred to and have adopted certain rules which are calculated to produce the best results. Mr. Justice Field has said that we can, as regards motives, rely upon what appears on the face of the enactment. This would mean that an Act of the legislature, if without doubt it was not intended to fulfil the purpose for which legislative power was granted, would not be valid, and the reason for refusing to allow an inquiry is based not on the doctrine that a mala fide enactment would be valid but that the inquiry is not practically possible. If an enactment stated in the preamble that the brother of the Chief Minister had been hauled up for murder and for that reason it was necessary to reduce the punishment for murder to one year, or if the enact ment was an Act of treason or sabotage directing the blowing up of an arsenal or the disbanding of an army in time of war, it would, according to this view, be void. I do not say it is not possible to take a contrary view, and, therefore, I will consider what would be the effect if we hold that motives of the legislature are not liable to be questioned at all. The strongest position would be that when the power to legislate is granted, it includes the power to legislate mala fide for any selfish, improper and even treasonable motive. Still this would hardly affect the question before us. It is one thing to say that legislative power when it in fact exists includes the power to enact mala fide and an entirely different thing to say that a legislative power which is to come into existence only when a condition precedent is satisfied can come v into existence even without that condition precedent being p satisfied. What I am discussing is not whether when the legislature has power to act, it can act mala fide, but whether a person who is entitled under some circumstances to legislate has acquired the power to legislate at all. To exclude any argument, I will for the present confine myself to the satisfaction of the Governor in the first part of Article 102, that is, the satisfaction that an emergency exists. As conceded by the learned Attorney‑General and as is apparent on the face of it, the Governor, when he makes up his mind that an emergency exists, acts only in an executive capacity. He becomes possessed of the legislative power only when he is satisfied that an emergency exists. Once the Governor attains a status similar to the legislature because of his satisfaction of the existence of an emergency, it may be possible to argue that henceforth he is like a legislature and even if in enacting a law he abused his powers and used them for a collateral purpose, his motives could not be questioned. Even this I would not concede. I will not accept that even while acting in the second part of Article 102 the Governor is an autocrat, the legality of whose acts is not liable to be questioned, but so far as the first part of Article 102 is concerned, I do not see how it is possible to put forward a contention at all that because the motives of the legislature cannot be questioned, his action is not liable to examination in a Court of law. The legislature admittedly possesses the power of legislation and the attack is that it has used a power which it did possess for an improper purpose. With respect to an Ordinance, the question is whether the Governor possessed the power at all, for the power was to come into existence on the happening of an event. Even as regards the second part of Article 102, I do not see any reason for deleting the condition precedent to the exercise of Power,, namely, that the legislation should appear to him to be need for meeting the emergency. The power of the Governor which arises on account of an emergency is confined to the requirements of the emergency. And if he promulgates an Ordinance not to meet the emergency but for a collateral and improper purpose, his act can as much be impeached as any other act of the executive Government can be impeached on the ground of mala fides. The act though legislative in character remains an act of the executive Government. Should the acts of the executive Government become immune from attack merely on the ground that they take the form of Ordinances, little check will there remain, on its mala fide action, because it is easy for it to secure the promulgation of an ordinance. Even if the Assembly be in session, it can be dissolved or prorogued. The Governor is bound to dissolve or prorogue it on the advice of the Cabinet. In any case, as long as the Government can prevent a session of the Assembly it should be free to act mala fide by just invoking the aid of an Ordinance. The real attack on the action of the Government in the present case is that it has put its stooges in control of the local bodies. That in 'order to instal the stooges it has armed itself with an Ordinance cannot in reason validate the abuse of power.

18. Conditions precedent for the exercise of powers by the legislature too can be inquired into by the Courts and the enact ments of the legislature can be held invalid on the ground that a condition precedent was not satisfied. I may refer to Articles 108 and 145 of our Constitution. Legislation by the Parliament by virtue of its powers under Article 108 would be invalid unless it was for the purpose of implementing a treaty agreement etc. and unless the Governor had been consulted. Similarly, under Article 145 the Parliament could have passed an enactment only after ascertaining the views of the Assembly, and evidence could be led to show that the views of the Assembly had not been ascertained or that the ascertainment of the views was not in accordance with law. If, even in the case of an Act of the legis lature we can go into the conditions precedent, there is no reason why we should not be able to go into them when the question is of the fulfilment of conditions precedent to the promulgation of an Ordinance. 18‑A. Before the question as to whether we can go into the motives of the person who promulgated the Ordinance is decided, we should realise the full implications of the proposition that such an inquiry is barred. The proposition that an inquiry is barred means that we should uphold fraud, corruption and abuse of power. I wish nobody put forward an argument that fraud and cor ruption should be sanctified unless he was able to show that the con sequences of not doing so would cause such harm to the State that we should acquiesce in it, and I wonder whether a conscience which is not affected and confused by the incessant inroads on justice of technicalities and artificial rules could ever put forward such an argument unless the condition I have mentioned was satisfied. In any case, I will not validate fraud unless it could be shown to me that the consequences to the State of not condoning it would be more serious than the consequences of condoning it. No attempt has been made to show that any such serious consequences will follow. There is little difference between an ordinary act of the executive Government and its act in promulgating an Ordinance. If we can in quire into ordinary executive acts without any harmful consequences and in fact with beneficial consequences, there is no reason why we should not inquire into the promulgation of an Ordinance. I have no doubt that the inquiry even in the case of an Ordinance will be in the public interest. That the Courts can inquire into the bona fides of the Government or an officer of the Government whenever the executive Government or such an officer is entitled to act if he is satisfied of the existence of a fact, is not a matter on which any argument can be offered. In the well known case Liversidge v. Anderson and another ((1941) 3 A E L R 338), their Lordships have, at least at seven places in the judgment, pointed out that the act of the Secretary of State for Home Affairs would be valid only if it was bona fide. Courts in British India have been setting aside orders passed by public officers under the Defence of India Rules and Safety Acts on the grounds that although an officer said he was satisfied, he was in fact not satisfied.

19. There is a judgment of their Lordships of the Privy Council which fully supports the proposition that an Ordinance is liable to attack on the ground of mala fides and that the question whether the Governor was satisfied as to the existence of an emergency can be gone into by the Courts. I am referring to the well‑known case Emperor v. Benoari Lal (1). As that is the only case dealing with the point at issue, I will refer to it in some detail. The impugned Ordinance was the Special Criminal Courts Ordinance II of 1942, promulgated by the Governor‑General by virtue of powers conferred on him by para. 72 of the Ninth Schedule to the Government of India Act which ran :‑ "

72. The Governor‑General may, in cases of emergency, make and promulgate ordinances for the peace and good government of British India or any part thereof, and any Ordinance so made shall, for the space of not more than six months from its promulgation, have the like force of law as an Act passed by the Indian Legislature ; but the powers of making Ordinances under this section is subject to the like restrictions as the power of the Indian Legislature to make laws ; and any Ordinance made under this section is subject to the like dis allowance as an Act passed by the Indian Legislature, and may be controlled or superseded by any such Act." The Ordinance had been attacked, inter alia, on the ground of non existence of an emergency as required by this para. and this attack was two‑fold ; (A I R 1945 P C 48) that an emergency did not exist, and (2) that although the preamble of the Ordinance stated that an emergency existed, the Governor‑General did not in fact hold the opinion that an emergency existed and was only providing for an emergency that may in future arise. This last contention was based on section 1 (3) of the Ordinance which said that the Ordinance "shall come into force in any Province only if the Provincial Government being satisfied of the existence of an emergency arising from any disorder within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the Official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded".

20. The Ordinance had been held ultra vires by the Calcutta High Court and the Federal Court of India on account of a reason with which we are not concerned, and an appeal to the Judicial Committee had been filed by the Government. At the same time, the Governor‑General had promulgated another Ordinance in place of the impugned Ordinance so that when the appeal came up for hearing before their Lordships of the Privy Council, the question of the validity of the Ordinance was more or less of academic interest. But their Lordships dealt exhaustively with the questions raised, saying :‑ "The question is largely academic, for upon Ordinance II being declared by the Federal Court to be ultra vires, Ordinance XIX of 1943 was promulgated to replace it. But in view of the elaborate argument that has taken place and the way in which the topic has been dealt with in the judgments in India, their Lordships think that the better course is to decide the question whether Ordinance II is invalid, especially as this may be of assistance in deciding other questions which may arise hereafter as to the validity of Ordinances made, in cases of emergency, by the Governor‑General under the authority of section 317 and para. 72 of Schedule 9, Government of India Act, 1935." I have reproduced this observation to show that their Lordships were laying down the law in order that it may be of assistance in deciding other cases where the validity of Ordinances may be challenged. Dealing with the attack on the Ordinance on the ground that no emergency existed, their Lordships said, after reproducing para. 72 :‑ "It is to be observed that the paragraph does not require the Governor‑General to state that there is an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. In the present instance, such questions are immaterial, for at the date of the Ordinance (2nd January 1942) no one could suggest that the situation in India did not constitute an emergency of the most anxious kind. Japan had declared war on the previous 7th December ; Rangoon had been bombed by the enemy on 23rd December and again on 25th December ; earlier Ordinances had recited that an emergency had arisen which required special provision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth." Their Lordships have stated that it is only when he acts bona fide that the Courts cannot challenge the view of the Governor -General that an emergency existed. The words used by their Lordships clearly mean that if he does not act bona fide, his action is liable to challenge in Courts. Their Lordships then discussed, after reproducing subsection (3) of section 1, which I have reproduced above, whether the Governor‑General was in fact satisfied of the existence of the emergency, and after dealing with the matter at some length reached the conclusion that he was in fact so satisfied. I reproduce below the relevant portion of the judgment which begins after the reproduction of section 1 (3):-- "In view of this last provision, it was contended that the Ordinance was invalid either because the language of the section showed that the Governor‑General, notwithstanding the pre amble, did not consider that an emergency existed but was making provision in case one should arise in future, or else because the section amounted to what was called `delegated legislation', by which the Governor‑General without legal authority sought to pass the decision as to whether an emergency existed to the Provincial Government instead of deciding it for himself. There is, in their Lordships' opinion, no valid ground for either of these contention. As regards the first one, it is enough to say that an emergency may well exist which `makes it necessary to provide for the setting up of Special Criminal Courts' without requiring such Courts to be actually set up forthwith all over India. Any other view would appear to deny to the Governor‑General the possibility, when faced with an emergency, of making provisions which could be instantly applied if the danger increased and became even more critical to the part of India where it was necessary to apply them. It would in fact (as Beaumont, C. J., observed in reference to a similar objection in the Bombay High Court in I L R 1943 Bom: 331 at page 351), deny to the Governor‑General, when faced with an emergency, the exercise of any foresight in the protection of the State. He may well have considered that, in view of the existing emergency, it was necessary to have a scheme for Special Courts drawn up and all ready for application if the existing emergency was further aggravated. A very similar situation arose in this country when, under the Emergency Powers Act, the Government devised and prepared for instant application a system of Zone Courts which were to be put into force only if, owing to invasion by the enemy or the like, the ordinary Courts in some part of the country were judged unable to function satisfactorily. Sen, J. in the High Court expressed the opinion that `the provisions of this Ordinance proclaim unmistakably that the Governor‑General did not think that an emergency which necessitates the Ordinance actually existed. He may have thought that such an emergency may arise at some future time. That, however, is not enough. The Governor‑General had no power to promulgate this Ordinance unless he was of opinion that the emergency requiring it actually existed ; it is therefore ultra vires of the Governor- General.' With all respect to the learned Judge, their Lordships are quite unable to accept this reasoning : It is perfectly possible, and indeed it is quite obvious, that the Governor- General regarded the situation on 2nd January 1942, as constituting an emergency‑in view of what was happening it would be remarkable if he did not‑and this justified and authorised the Ordinance providing in advance for Special Courts. It does not in the least follow that the bringing of Special Courts into actual existence and operation all over India must take place at the same time." Little doubt is left on a perusal of this extract that their Lordships regarded the Courts competent to go into the question whether the Governor‑General was in fact satisfied of the existence of an emergency. Almost identical is the question which we have to decide in the present case. It is true that in that case the second part of the argument did not relate to mala fides, but was based on section 1 (3) itself, from which an inference was raised that the Governor‑General was contemplating an emergency which was to arise in future and had not yet arisen. But I do not see how a case where the plea that the Governor‑General had not in fact found an emergency is based on male fides is weaker than it is in a case where it is based on this that what the Governor‑General found was not an emergency. The substance of the plea in both cases is that the condition precedent as to a finding by the Governor‑General or the Governor as to the existence of an emergency is not satisfied.

21. This case supports the petitioners, firstly, because their Lordships have attached to the exercise of jurisdiction by the Governor‑General the qualification of bona fides and, secondly, because their Lordships have gone into the question whether the Governor‑General was in fact satisfied of the existence of an emergency. We cannot prohibit an inquiry into the bona fides or into the existence of satisfaction, unless we hold that the view taken in Emperor v. Benoari Lal was not correct.

22. I may also refer to Jnan Prosanna v. Province of West Bengal (A I R 1949 Cal. 1), which was cited on behalf of the respondents by Mr. Ismail Bhatti but which may have been cited by Mr. Brohi. In that case an Ordinance promulgated by the Governor had been attacked on the ground of mala fides. The learned Judges did say that the mala fides of the Governor would be difficult to prove and it is for that reason that this judgment was cited on behalf of the respondents, but to say that a thing is difficult of proof is an entirely different thing from saying that it is not open to inquiry in a Court of law. The learned Judges went into the question of mala fides and held that mala fides were not proved. It is to be observed that it was not even urged that mala fides could not be inquired into by a Court of law. The judgment instead of helping the respondents supports the petitioners because the question of mala fides was in fact gone into and decided without any objection that it was not justiciable.

23. In re Kalyanam Veerabhadrayya (A I R 1950 Mad. 243), too was cited on behalf of the respondents. In that case, the Governor had prorogued the Assembly in order that he may be able to promul gate an Ordinance and this action of his was attacked on the ground of mala fides. The learned Judges held that the suggestion that the Governor acted mala fide was wholly unfounded. They were of the opinion that legislation was urgently needed and it was essential in order to meet the emergency that an Ordinance vas promulgated for the procedure for getting a law' passed by the legislature was lengthy. The learned Judges assumed without discussing that an attack could be made on an Ordinance on the ground of mala fides. I do not see how this case helps the respondents.

24. There are provisions in our Constitution which preclude the Courts from an inquiry into the validity of certain proceedings. Under Article 89, the validity of proceedings in the Assembly is not liable to be challenged in a Court of law. Under Article 195 the validity of proclamations of emergency issued under Articles 191, 193 and 194 cannot be questioned in any Court. Under Article 222 the validity of the election of President is not justiciable. If the intention of the Constituent Assembly was that the declaration of emergency under Article 102 should not be challenged in a Court of law, there was no obstacle in its making a provision similar to that in Article

195. It is to be observed that what Article 195 prohibits is an inquiry into the validity of a declaration of emergency and the statement of the Governor that "circumstances exist which render immediate action necessary" is also a declaration of emergency. The absence of a provision similar to Article 195 is a good argument against the respondents. I am not prepared to accept that the omission of a validating provision relating to this declaration of emergency is accidental and not deliberate. We are dealing with a Constitution which is, by presumption, a carefully prepared document, and we do not lightly attribute omissions to it. We can even assume that the compiler of this document was aware of Emperor v. Benoari Lal where it had been categorically laid down that the act of the Governor‑General was to be valid only if it was bona fide and where their Lordships had gone into the question whether the Governor‑General was in fact satisfied of the existence of an emergency. I would hold that the general rule as to the motives of the legislature not being liable to be inquired into has no application to the case of an ordinance.

26. I will now deal with the second objection of the respon dents, namely, that because the Governor is bound to act in accordance with the advice of the Cabinet, his action cannot be attacked on the ground of mala fides. It would be convenient before proceeding, to reproduce the relevant part of Article 71 on which the argument was based as well as the connected Articles 73 and 74 to which reference shall have to be made during the discussion :‑ "Article 71. (1) There shall be a Cabinet of Ministers with the Chief Minister at its head, to aid and advise the Governor in the exercise of his functions. (2) The question whether any, and if so, what, advice has been tendered by the Cabinet or a Minister to the Governor shall not be inquired into in any Court. (7) In the exercise of his functions, the Governor shall act in accordance with the advice of the Cabinet or the appropriate Minister, as the case may be, except in cases where he is empowered by the Constitution to act in his discretion, and except as respects the exercise of his powers under clause (6). Article 73. (1) The executive authority of a Province shall vest in the Governor and shall be exercised by him either directly or through officers subordinate to him, in accordance with the Constitution. (2) Except as expressly provided in the Constitution the executive authority of a Province shall extend to all matters with respect to which the Provincial Legislature has power to make laws. Article 74. (1) All executive actions of the Government of a Province shall be expressed to be taken in the name of the Governor thereof. (2) The Governor shall by rules specify the manner in which orders and other instruments made and executed in his name shall be authenticated, and the validity of any order or instru ment so authenticated shall not be questioned in any Court on the ground that it was riot made or executed by the Governor. (3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government." In accordance with Article 71 (7), the Governor is bound to act in accordance with the advice of the Cabinet or the appropriate Minister except in a case where he is entitled to act in his dis cretion. The promulgation of an Ordinance is not one of the matters in which he is entitled to act in his discretion and he is bound to promulgate an Ordinance if so advised by the Cabinet. The argument is that the Cabinet may be acting corruptly or mala fide but the Governor who accepts the advice acts innocently and as the Ordinance is promulgated by him, the attack on the Ordinance as being a result of males fides is without any force. The argument advanced on behalf of the respondents involves some confusion of thought. When an Ordinance is attacked on the ground of mala fides, all that is being urged is that the Governor was not in fact satisfied as is provided by Article

102. The effect‑of Article 71 (7) is that although the Governor himself is not, satisfied of the existence of an emergency at all, still, if he receives advice that an emergency does exist, he is bound to accept its existence' and he is bound also to promulgate an Ordinance as required by the Cabinet. The result is that although in Article 102 the satisfaction of the Governor is mentioned, actually it will be the satisfaction of the Cabinet. The Governor is, in accordance with Article 71 (7), not only bound to act on the advice but cannot act apart from advice. That is the only reasonable interpretation of Article 71 (7) because otherwise the Governor may go on acting suo motu without any advice having been offered on the ground that in fact no advice had been offered to him and; therefore, he was not contravening Article 71 (7). If tire effect of Article 71 (7) be that he is entitled to act only on advice, then it is obvious that the satisfaction of the Cabinet is substituted for that of the Governor. The effect of Article 71 (7) cannot be that the requirement of satisfaction is entirely done away with. After ‑all Article 102 does require satisfaction and it on account of Article 71 (7) the satisfaction of the Governor himself , is of no effect, it must mean the satisfaction of somebody. It will be the satisfaction of the person who is truly responsible for the promplgation of the Ordinance and according to whose directions the Governor is bound to act. The effect of Article 71 (7) cannot be that although "neither the Governor nor the Cabinet is satisfied, the Ordinance would be valid.

27. I do not think what I have stated above stands in need of the support. Of an authority. But if an authority be needed on the question as to‑whose satisfaction will be required in a case where someone else is to act, although according to law the satisfaction of the Governor is required, I would refer to the judgment of their Lordships of the Privy Council in Emperor v. Sibnath Banerji (AIR 1945PC156) where their Lordships explained what was meant by satisfaction of the Governor when he was not to act himself. Under rule 26 of the Defence of India Rules, the Government (which by its definition meant the Governor), if satisfied of the existence of certain facts, could pass an order of detention. Following was the order which was passed in that case :‑ "Whereas the person known as Shibnath Banerjee, M. L. A., son of late Dwarkanath Banerjee of 3/1 Kali Banerjee Lane, Howrah, is detained in the Howrah Jail under the provision in R. 129, Defence of India Rules ; And whereas the Governor is satisfied that, with a view to preventing the said person from acting in any manner prejudicial to the defence of British India, the public, safety, the mainten ance of public order or the efficient prosecution of the war, it is necessary to make the following orders to continue his detention ; Now, therefore, in exercise of the powers conferred by cl. (b) of sub‑r. (1) and sub‑r. (5) of Rule 26, Defence of India Rules, the Governor is pleased to direct‑ (a) that the said person shall untill further orders be detained ; (b) that untill further orders the said , person shall continue to be detained in the Howrah Jail ; and (c) that during such detention the said person shall be subject to the conditions laid down in the Bengal `Security Prisoners Rules, 1940. By order of the Governor, S. B. Bapat, Addl. Dy. Secy. to the Govt. of Bengal." It will be observed that according to the statement in this order the Governor has been satisfied of the facts on the basis of which the order of detention was passed. An objection was taken to the order on the ground that the law required the personal satisfaction of the Governor and that was wanting in that case and, therefore, the order was void. It had been conceded on behalf of the Government that the order had in fact been passed by the Home Minister to whom the Governor and delegated his power to pass such orders by rules of business framed under section 52 of the Government of India Act. Their Lordships held in the first place that the satisfaction of the Governor required by law did not mean .his personal satisfaction, and would mean the satisfac tion of the person who was authorised .to act in place of the Governor in accordance with the' rules. Their Lordships then proceeded to consider whether the Home Minister was in fact satisfied or not, and holding that he had passed ; a routine order and had not been satisfied of the circumstances 'mentioned in his order held the order of detention to be void:

28. Another way of looking at "the matter is this. If a person acts through another who is in law bound, to act in accord ance with his directions, he cannot by that means escape the consequences of his fraud. Whatever legal consequences attach to the act of that person will continue to attach to it even though action is taken not in his name but in that of another. We look to the substance of the matter. The promulgation of the Ordin ance is truly the act of the Cabinet and if the Cabinet acts mala fide, it does not matter that the person through whom it acts is free from mala fides. The Governor acts neither bona fide nor males fide, for truly speaking he does not act at all.

29. The respondents while putting forward such an argument forget that in law not only is the promulgation of an Ordinance the act of a Governor but all acts of the executive Government are the acts of the Governor. According to Article 73 the executive authority of a Province vests in the Governor and is exercised by him, though it can be exercised either directly by him or through officers subordinate to him. Under Article 74 all executive actions of the Government are expressed to be taken in the name of the Governor. The Ministers can only advise. They cannot themselves act at all unless there be a rule of business authorising them to do so. All actions of the Govern ment 4being in accordance with Article 73 the actions of the Governor, the argument which has been put forward with respect to an Ordinance can be put forward with respect to every act of the executive Government and it can be pleaded that the Governor is acting altogether bona fide although the Ministers who advise him and on whose advice he is bound to act are all the time acting mala fide and, therefore, all actions of the executive Government are immune from attack. The respondents do not contend that actions of the executive Government apart from Ordinances cannot be challenged as mala fides.

30. I would, therefore, hold that Article 71 (7) does not prevent an inquiry into the bona fides of an Ordinance promulgated by the Governor, its only effect being to substitute for the satisfac tion of the Governor the satisfaction of the Cabinet. I may G mention here that the learned Attorney‑General did not at all contest this point and conceded that on account of Article 71 (7) it is the mala fides of the person who gives the advice that have to be gone into.

31. I will next consider the objection based on Article 213 of the Constitution which runs:‑ "Neither the President nor the Governor of a Province shall be answerable to any Court for the exercise of powers and performance of duties of his office, or for any act done or purported to be done in the exercise of those powers and performance of those duties ; Provided that nothing in this Article shall be construed as restricting the right of any person to bring appropriate proceed ings against the Federal Government or a Provincial Govern‑ This Article certainly does not mean that the legality of an act of the Governor is not liable to be gone into. If that were so, even an Ordinance promulgated by the Governor while the Assembly was in session could not be declared void, but nobody is prepared to put forward such a contention. Article 213 in fact supports the contention of the petitioners that the legality of all acts of the Governor can be challenged in a Court of law because it provides that there is no bar to the bringing of proceedings against the Provincial Government. I have already pointed out that in accordance with Article 73 all actions of the executive Government are the actions of the Governor. The Ministers only advise and are not entitled under the law to act though truly all, actions is theirs. It is apparent that a proceeding against the Government will only be in respect of an act of the Governor. Article 213 only means that the Governor cannot be made a party to a proceeding and cannot be forced by the Courts to act in a particular manner, but it is not at all the effect of Article 213 to legalise or make immune from attack any act which is not valid.

32. The next question is whether the Ordinances were pro mulgated mala fide. The circumstances leave little doubt that it is a case of naked abuse of power. On the eve of the general elections in the country, the party in power has indefinitely postponed elections to all local bodies in West Pakistan and has put its own nominees in charge of all local bodies which stand superseded (110 out of 199 stand superseded) and has further provided that as and when the term of office of members of the functioning local bodies expires, it shall be entitled to put its own nominees in charge of those bodies. (According to the report of the Inspector of Local Bodies, the term of office of 50yo of those that are functioning is "likely to expire within the next few months"). What was the urgent need for postponing the elections and of putting its own nominees in charge of local bodies ? We record findings of fact in the light of pleas and statements of parties. The Provincial Government is before us. Has it stated what were "the circumstances that rendered immediate action necessary"? Neither in the written statement nor in the arguments presented is there any explanation of the urgent need for the action taken. The petitioners have been howling at the top of their voice that this action is mala fide. We have been questioning learned counsel who appeared for the Province of West Pakistan to explain the urgency of postponing the elections and of putting the Government's nominees in charge of the local bodies. Neither the learned Attorney‑General nor Mr. Nazir Ahmad Khan, both of whom appeared for the Province of West Pakistan, have been able to state what was the emergency which called for such action. Mr. Nazir Ahmad Khan says. "How do we know what may not have influenced the mind of the Cabinet; they may have regarded the case as one of urgency". This is a strange answer from a counsel who appears for the person whose action is in dispute, and the answer is in fact proof of the utter hopelessness of the case of the respondents on facts. When the person whose conduct is attacked as mala fide is before the Court, it is for him to explain the reason why he so acted. It is not necessary for him to prove that reason but he must state it. It is a matter within his personal knowledge. If he states a proper reason for his conduct and if the Court reaches the conclusion that that could possibly have been the reason for his conduct, the verdict should be in his favour. But if he does not state any reason and the circumstances are of such a nature that they call for an explanation, the verdict should be against him. The circumstances here are fairly strong and it can hardly be contended that they do not require an explanation. The Republican Party has, by these Ordinances, gained a great advantage for itself with respect to the next general elections and there is apparently no urgent need either of postponing the elections or of installing its own nominees. It is nobody's case that there is some such defect in the election laws of the local bodies that to hold elections in accordance with those laws would lead to any harmful consequences. The terms of reference of the Election Commission do not at all show that there was any matter involving any urgency. The written statement says the reason for promulgating the Ordinances is stated in the Govern ment communique of 29th May 1958. The explanation given in this communique is that the election laws of the local bodies were to be brought in conformity with the Representation of the People Act and the laws relating to local bodies in West Pakistan were to be made uniform. But the Representation of tae People Act (XXXI of 1957) was passed on the 10th of September 1957, and in March 1958, the Government was, according to its state ment before us in Writ Petition No. 29 of 1958, filed by Mr. Qaseemuddin, very anxious to hold elections to the Corpora tion as soon as possible, and not only that we had passed an order that elections were to be held within a month of the judgment in Parveen Zohara's case. The Karachi Bench of the High Court had also passed an order in Writ Petition to the effect that elections to the Hyderabad Municipality were to be held before the end of May 1958. Where was the urgency of postponing the elections and nullifying the orders of the Courts ? Neither the examination of the question as to the changes which may have to be made in election laws of local bodies on account of the Representation of the People Act, nor the examination of the question of uniformity of the election laws relating to local bodies are matters for which the elections may be postponed, nor can they be a reason for installing Government's own nominees in control of local bodies. It is stated in the written statement of the Province of West Pakistan that the appointment of a number of persons in place of an Administrator who is generally an officer of the Government is more democratic. What greater proof of mala fides can there be than that on the eve of the general elec tions you instal your stooges on the pretence of 6cmocracy ? Wily not promulgate an Ordinance by which the Inspector‑General of Police, the Commissioners and other important officers of the Government will be replaced by committees of men from the public and say we are doing it because it is more democratic ? Not only is this action not democratic, it is most undemocratic for it puts one party unfairly in a position of advantage against other parties.

33. That these nominations have great attraction for the members and that they are of importance for the general elections can be imagined but this is demonstrated also by the way this case has been contested on behalf of the members of the Adminis trative Committee. The meeting of the Administrative Committee for the election of its Chairman and Vice‑Chairman and for the oath of office had been fixed by the Government for the 14th June 1958. This petition came up for hearing before me and Shabir Ahmad, J., on the 13th June in kacha peshi. When, on admitting the petition, we were going to pass an order preventing assumption of office by the members of the Administrative Committee, Mr. Ismail Bhatti appeared on behalf of the members of the Administrative Committee to oppose the grant of a stay order. When he found we were not prepared to allow the Committee to function, he made a request that at least the meeting and the taking of oath of office by the members be not prohibited. We were not averse to the meeting but at that time we were not agreeable to the taking of oath of office, and while orally clarifying that a meeting was not prohibited, we passed orders prohibiting assumption of office by the members of the Committee. The next day, the 14th of June, was not a Court day, being a Saturday, but I and Shabir Ahmad, J., happened to be working in our chambers when an application was presented to us for a clarifica tion that the meeting (which was fixed for that very day) was riot prohibited. We clarified the matter by saying that a meeting was not prohibited and on the request of counsel for the members of the Committee we even added to the previous order by allowing an oath of office. A dasti order was taken, a meeting was held the same day, and oath of office taken, though the Committee had been prohibited from functioning. When arguments in the writ petition were concluded, an application was put in to the effect that the stay order be vacated. The reason given was that the "Municipal administration of Lahore is suffering on account of the Administrative Committee not having commenced functioning as it should have done from the 14th of this month, which is causing very great inconvenience to the tax‑payers and the other residents of the City of Lahore." How is the administration suffering and how is the rate‑payer and the citizen being affected because it is the Administrator and not the Administrative Committee that is in control ? All this shows how anxious the members are to get the distinction and the power involved in their appointment. They want the election of the Chairman and Vice‑Chairman to take place and they want to take the oath of office even if the stay order prohibiting their functioning continues. Many of them are the members of the Advisory Committee between whom and the Administrator there was a tussle because they wanted to act not as advisers but as those who control the affairs of the Corporation. The anxiety of the members of the Administrative Committee to assume office can be due either to the fact that the office and membership of the Administrative Committee have great attraction for them or to the necessity of assumption of office for party purposes or to both of these reasons.

34. I suggested to the Government that, if they were acting bona fide, they should appoint to the Administrative Committee of the Corporation and to other local bodies the persons who had been elected and whose term of office had expired. But this suggestion evoked no response except a statement that in‑ some local bodies supersession had taken place very long ago. But those local bodies could be excluded and in the Corporation and in other local bodies where supersession had not taken place long ago the elected members whose term of office had expired could be appointed. If the Government wants to be democratic, as it alleges in .the written statement, why does it not just restore the elected representatives ?

35. We might also consider in connection with the question of mala fides the actual appointments to the Administrative Committee of the Corporation, for the promulgation of the Ordinances and the appointment of the members of the Com mittee are really parts of the same transaction. Out of sixty members only four are non‑Republicans and the nominees include six members of the Cloth Dealers' Federation of which Syed Hadi Ali Shah, the Chief of the Republican Party of Lahore, is the President, and even the legal adviser of that federation. There are twenty‑two members from Constituency No. 5 about which the allegation of the petitioners is that Syed Hadi Ali Shah wants to stand from that constituency, and the statement of Sayed Hadi Ali Shah is that he has not yet made up his mind as to whether he will stand from that constituency. Ten of the members are defeated candidates of the last elections to the Corporation. Why have they been given preference over those who defeated them ?

36. I would reach the conclusion that the promulgation of the Ordinances was mala fide without any reference to the Secretariat file relating to this case, but that file is proof sufficient by itself that there was no emergency involved. The learned Attorney‑General had made a request to us to go through this file and we did so. Later when my learned brother put some question to Mr. Brohi with respect to what was contained in this file, Mr. Brohi said that he could only be in a position to answer if that file was made available to him. At this Mr. Nazir Ahmad Khan, who was appearing for the Province of West Pakistan, said that he would consult the Government and would make a state ment on the next date of hearing. On the next date of hearing, he said that the Government claimed privilege because the file related to affairs of State. Though a privilege has been claimed, 1 find on a perusal of the file that there is nothing in that file which could by any stretch of language be called "affairs of the State" and I feel no hesitation in referring to its contents though I will refer only to as much of it as is necessary for my purpose. The file discloses that on the 11th of April 1955, Mr. Masud‑ul- Hasan, Inspector of Local Bodies, put up a note before the Secretary Social Welfare and Local Government Department (S. W. L. G.), the substance of which was that an amendment of law relating to elections to local bodies was needed. The main reasons why it was so needed were stated to be :‑ (i) Rights of women had to be protected ; (ii) question of separate or joint electorate had to be decided ; (iii) the law had to be brought in conformity with the Representation of the People Act ; (iv) all election laws of local bodies in West Pakistan were to be made uniform. A suggestion was made in this note that a high‑powered committee be set up to examine the question of elections to local bodies and make recommendations as to :‑ (a) the electorate ; (b) formula for representation ; (c) principles for framing of wards ; (d) representation of women ; (e) election procedure, and (f) reforms to be introduced. This note was not put up under any written order of the Government nor under any legal provision. At the end of this note, however, there is a statement which shows that the Inspector of Local Bodies had submitted this note on the oral directions of pane the Minister. This statement runs :‑ "The Minister wanted to take up this question with his Cabinet colleagues. This note is accordingly submitted for such action as S. W. L. G. and the Minister may deem fit". On the same day, i.e., the 11th of April 1958, the Secretary S. W. L. G. wrote on this note "Minister for S. W. L. G. may be interested to see". On the 15th of April 1958, the Minister wrote: "Seen. It is a very good suggestion. The appointment of a Commis sion should be taken up when the Audit and Accounts Section of the Local Government Department has been properly constituted and the staff comes over from the Finance Department". On the 18th of April 1958, Mr. Masud‑ul‑Hasan put up a draft of an Ordinance saying : "S. W. L. G. was pleased to discuss the case. He desired that the draft of an Ordinance should be put up. The draft is accordingly submitted". This draft, in the ordinary course, went to the Law Department and then to the Council of Ministers who approved of it with the result that Ordinance XII of 1958 was promulgated.

37. This is all that has happened. It was just "a very good suggestion" by the Inspector of Local Bodies which is the cause of the postponment of the elections and of the installing of the nominees of the Government in control of the local bodies. The Minister in charge not only did not say that it was a matter of emergency but said that the question "should be taken up when the Audit and Accounts Section of the Local Government Department has been properly constituted" etc. However, only four days later, without there being any suggestion that what the Minister referred to had happened, an Ordinance was put up.

38. Of course, a Commission could have been appointed to go into all the matters which are included in the terms of reference mentioned in Ordinance XII of 1958, but the work of the Commission could go on without in any way interfering with the ordinary course of the elections to the local bodies, for there was no reason for the holding up of the elections till the Commission had made a report and the Government had taken action on it and the setting up of a Commission could not be made an excuse for installing the nominees of the Republican Party in control of the local bodies.

39. It is noteworthy that the Government have not fixed any period within which the report of the Commission has to be submitted. This is not due to the fact that their attention has not been drawn to the question of a time 4imit because they have fixed a period of three months within which action is to be taken after the report is submitted. The omission to fix any time for the report of the Commission is obviously deliberate. It may also be noted that the Ordinances grant full control to the Government with respect to the nomination of members of the Administrative Committee or of persons who are to take charge of other local bodies. Any person can be appointed, whether he belongs to that locality or not. Even a foreigner can be appointed. The Government can, at any time, remove a person and put another in his place.

40. I would hold, therefore, that the promulgation of Ordinances Nos. XI, XII and XVI of 1958 was mala fide and that the appointment of the members of the Administrative Committee is void in law. This finding would render unnecessary the consideration of other points raised by Mr. Brohi, but as he had fully dealt with the second objection, namely, that the Ordinances are not within the legislative competence of the Provincial Legislature, I propose giving my finding on it.

41. Mr. Brohi has relied upon Entry No. 15 of the Provincial List of the, Fifth Schedule to the Constitution. This Entry runs: "Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local‑self Government or village administration". The argument put forward is based on the words "local‑self Government". It is contended that local‑self Government necessarily means Government by the elected representatives of the people, and as the provision made by the Ordinance is not for administration of local bodies by the elected representatives but by the nominees of the Government, the Ordinances are not within the scope of Entry No.

15. Mr. Brohi has not quoted any authority for the proposition that local‑self Government necessarily involves a Government by the elected representatives only and in this connection it may be pointed out that Entry No. 15 is a verbatim copy of Entry No. 13 of the Provincial List in the Seventh Schedule to the Government of India Act, and as the Municipal Committees and District Boards were not in pre Partition India constituted wholly of elected representatives, it would not be possible to argue that in the Government of India Act the words "local‑self Government" necessarily excluded the idea of nomination. It is not necessary, however, to deal ex haustively with the question whether a provision for nomination of any person to a local body would be within Entry No. 15 for two simple reasons. The first is that this provision for appoint ment or nomination purports to be introduced as an emergent measure. It is not intended to be the ordinary method of administration of local bodies and Mr. Brohi has been forced to accept that such a measure, if intended only to meet an emergency, would be valid in legislation relating to local‑self Government. He has no objection to the appointment of an Administrator which is already provided by the Corporation Act and there are similar provisions in the Acts relating to other local bodies. The legality of the introduction of this provision, therefore, would depend upon whether it was really intended to meet an emergency. For the purpose of the present discussion, I am assuming that the Ordinances were promulgated bona fide. If this legislation was bona fide and was intended only to cover a period within which for some good reason the local bodies are not functioning, it could not be urged that it is not within Entry No.

15. If it was not bona fide, it would be void for that reason.

42. The second answer to Mr. Brolli's argument is that the competence of the Provincial Legislature is not confined to matters enumerated in the Provincial List and by virtue of Article 109 of the Constitution it includes the power to legislate with respect to every matter which is not mentioned in any List in the Fifth Schedule. Confronted with this, Mr. Brohi says there being an express limitation in Entry No. 15 that the persons who are to take charge of local bodies shall be elected representatives of the people, that limitation cannot be got rid of by the exercise of residuary powers. The argument is wholly without force. Mr. Brohi is attributing an intention to the Constituent Assembly to create a fundamental right by means of Entry No. 15, for that would be the effect of the acceptance of his argument. On his interpretation no legislature is competent to enact that any member of a local body can be nominated. There is no reason to suppose that the Constituent Assembly was creating fundamental rights just by enumerating subjects in the different Lists. By virtue of the Provincial List, assuming that local‑self Government means what Mr. Brohi says, the Provincial Legislature has the power to provide for elections to local bodies. By means of its residuary powers, the Provincial Legislature has the power to make any arrangements for administration of local bodies. It may be argued : Why then should Entry No. 15 be in this form and why was it not put in a form which includes administration of local bodies by elected representatives as also otherwise ? But this question will imply that there was no need for keeping the Provincial List and the residuary powers apart whereas the Constituent Assembly thought fit to put them in separate categories. It could have provided that the Provincial Legis lature shall have exclusive power to legislate with respect to matters not enumerated in the Federal or the Concurrent List but it chose to frame a Provincial List with the addition of residury powers. The reason why these separate categories are provided appears to be that the legal position of the subjects contained in the Provincial List and those with respect to which the Pro vincial Legislature has residuary powers of legislation is not the same. For instance, under Article 106 (4), the Parliament has power to make laws with respect to matters enumerated in the Provincial List except for a Province or a part thereof, but it does not possess a similar power with respect to subjects included within the residuary powers of the Provincial Legislature. I am just giving an example and on further examination more reasons may be found why it has been thought fit to keep the residuary powers apart from the Provincial List.

43. I will now deal with Writ Petitions Nos. 520 and 521 of 1958, which relate to the District Board of Jhang. The term of office of the elected members of this District Board, which is three years under the District Boards Act, expired on the 2nd of April 1957, without any fresh elections having been held. Before the expiry of this term of office, i.e., in February 1957, the District Boards Act was amended and it was provided that the effect of expiry of the term of office of the members would be the same as that of a supersession. As the Government did not extend the term of office and did not hold any fresh elections, it became entitled to appoint an Administrator. For some time, the Deputy Commissioner, Jhang, acted as Administrator. He was succeeded by Mr. Zahur Hussain Shah, a retired official of the Co‑operative Department. Then came Ordinance XI of 1958 which I have already reproduced, by which section 52 of the District Boards Act was amended and the Government became entitled to appoint any number of persons in whom all powers of the District Board were to vest. In pursuance of this Ordinance, twenty‑two persons were appointed under section 52 to take charge of the administration of the District Board. The petitioners in these two writ petitions are two of the members of the District Board whose terms of office expired on the 2nd of April 1957. They contend that the whole action of the party in power in amending the law and appointing twenty‑two persons to take charge of the District Board is mala fide. It is alleged that the party in power has, by means of the Ordinances, contrived to prevent the elected representatives of the people from getting control of the District Board and has put its own partisans in charge. This, it is alleged, has been done in order to help the Republican Party in the next general elections.

44. What has been said while discussing Writ Petition No. 518 of 1958 covers these petitions too. The promulgation of the three Ordinances and the appointment of persons to local bodies are parts of the same transaction. I have held that the Ordinances were promulgated mala fide and that the appointments in consequence thereof are void. The appointment of the twenty‑two respondents to the District Board of Jhang too is void for the same reason.

45. As a result, I would accept all the three writ petitions with costs. Per M. YAQUB ALI, J.--‑I have carefully read the judgment which my learned brother proposes to deliver in this case, and with profound respect I find myself unable to agree with his conclusions that Courts can sit in judgment on an Ordinance promulgated by the Governor of a Province under Article 102 of the Constitution and declare it illegal on the ground of mala fide and that the appointments of the respondents as members of the advisory bodies of the Corporation of the City of Lahore and the District Board, hang, were void on the same ground.

2. The facts giving rise to the three petitions, which are the subject‑matter of this order, the relevant provisions of the two impugned Ordinances and the grounds on which they have been attacked are all elaborately set out in the judgment of my learned brother so that it is unnecessary to encumber this order by their repetition. The main ground of attack by the petitioners was that at the time the two impugned Ordinances were promulgated by the‑ Governor, circumstances did not exist which rendered immediate action necessary. Apart from the objection based upon Entry No. 15 of the Provincial List contained in Schedule V to the Constitution, which has been rightly repelled by my learned brother, it was not contended that there was any other bar to the West Pakistan Assembly passing exactly similar laws which would be wholly immune from any challenge in Courts of law. The objection thus resolves itself to the Governor being satisfied or not that circumstances' existed which rendered an immediate action necessary without waiting for the Provincial Assembly to meet in due course and to enact the subject‑matter of the Ordinance as laws. It was argued that "satisfaction" was a pre‑condition to the exercise of legislative power by the Governor, and if, in reality, it did not exist, any Ordinance pro mulgated by him was in excess of his authority and as such void ab initio. On this premises the argument was extended to the conclusion that the state of mind of the Governor being a fact in itself, the Courts could enquire into it like any other fact. The next step was comparatively easier, because the scope and the object of the two Ordinances was susceptible of an interpretation that the party in power had instead of advancing the interest of Local Self‑Government in the Province, acquired for themselves an authority to install in place of elected representatives of the citizens, their own nominees in local bodies to gain political advantage in the forthcoming general elections. Thus the object with which the existing laws were altered and modified was said to be mala fide which rendered the impugned Ordinances illegal.

3. At first sight the argument appears to be attractive and at one time I felt inclined to accept it but on reconsidering the legal aspects of the constitutional issue involved in the decision of this case, I have changed my view although not without pro found regret and a sense of extreme anxiety as to the future of democratic institutions in this country. Who can deny that the impugned Ordinances are most retrograde and undemocratic legislative measures ? That these may well have been conceived as a part of a design to gain political advantage in the forthcoming elections, as alleged by the petitioners, and that as a result of the amendments introduced in the parent Acts, the citizens of this Province have been deprived of the right conferred on them nearly half a century ago to manage the affairs of local bodies through their elected representatives. But does it lie within thei domain of the Courts to sit in judgment on the policy or impolicy of laws enacted by a competent authority under the Constitution ? My answer to the question is in the negative, because the criterion for judging the wisdom of laws is of J political nature and the proper forum to impugn them is the National Parliament and the Provincial Assemblies and not the Courts of law. 4. "The satisfaction" of the Governor under Article 102 of the Constitution is said to be that of his Council of Ministers, because under Article 71 (7) he shall, in discharge of his functions, act in accordance with the advice of his Cabinet. With reference to this provision of the Constitution, my learned brother has observed that all acts of the Governor are in law and fact the acts of his Cabinet and that no act is at all performed by him except in cases where the Constitution directs him to act in his discretion, and, therefore, all acts performed in the name of the Governor, including promulgation of an Ordinance, can be challenged as the acts of the executive. I do not find myself in agreement with the view that the Governor does not at all act, but even if it be so, a Cabinet is presumed to enjoy the support of the majority of the members of the Provincial Assembly, or else the Governor can, under Article 71 (6), dismiss it forthwith. Any advice given by the Cabinet to the Governor to promulgate an Ordinance in theory, therefore, carries with it the weight of the majority of the members of the Assembly. The promulgation of an Ordinance is accordingly not an executive but a legislative act which the Courts of law cannot set aside except by negativing the authority of the majority of the members of the Provincial Assembly to enact laws which lie within their competence under the Constitution. If the Cabinet acts mala fide, the Constitution has itself provided political safeguards against it. Firstly, Ordinances, although having same force of law as Acts of the Provincial Assembly, are to automatically expire after six weeks of the next session of the Assembly and it is left to the majority of the members to re‑enact them as laws if they approve of their sagacity and wisdom. But even if they do not, or the Cabinet does not itself, wish to continue them as laws, it is mandatory to lay all the Ordinances before the Assembly for enabling the members to question the Government as to why it was necessary to promulgate them instead of bringing them before the House in the form of Bills. Thus, if they disapprove of the authority exercised by the Governor on the advice of the Council of Ministers in promulgating any Ordinance, they can vote out of office the Council of Ministers responsible for their promulgation. They can also cut down the life of the Ordinances by disapproving them instead of allowing them to die out six weeks later. In case Courts of law were to interfere in such political matters, it is obvious they will be drawing themselves into unseemly conflicts with political authority in the country, h and this consideration alone, as a rule of public policy, must restrain them from enlarging their jurisdiction to such domains, e.g., it was not denied that the West Pakistan Assembly could enact the impugned Ordinances as valid laws. What would then be the value or respect .for the opinion expressed by this Court based upon considerations of jurisprudence or of policy ?

5. Apart from the political aspect of the issue involved in the decision of this case, let us now turn to the relevant provisions of the Constitution to determine whether bona fides of a legislative measure is a justiciable issue. First of all we find that the Constitution has, apart from the Provincial Assembly, conferred on the Governor legislative authority to be exercised of course on the advice of his Council of Ministers which except for the duration of the laws made by him has the same width as the authority of the Provincial Assembly to enact laws. The Constitution thus itself provides two modes of enacting laws in the country, one by the majority of members in the Assembly while it is in session, and the other by the Governor on the advice of his Council of Ministers in whom the majority of the members L have confidence when the Assembly is not in session. Article 102 declares that any Ordinance so made shall have the like force of law as any Act of the Provincial Legislature. What distinction can then in law or principle be made between an Act of the Provincial Legislature and an Ordinance enacted under Article 102 so far as the mala fides or excess and abuse of power in enacting them is concerned. If an Ordinance can be declared illegal by Courts on either of these grounds, then the same incidents must attach to the Act of the Provincial Legislature. Cases may not be wanting in which it may be proved beyond any manner of doubt that majority of the members of the Provincial Assembly in passing an Act had acted with ulterior motives, i.e., not for the good government of the country or for the benefit of the citizens but for their personal benefit. (The Act recently passed by the Provincial Assembly to abolish estate duty on agricultural property can be an instance in point.) The majority of members in voting for an Act might have been deceived by inaccurate or false data placed before them. There may be cases in which approval of the majority of the members of the Assembly was obtained by coercion, undue influence, false representations or untrue promises. Can the Acts of the Legislature, which sufer from any one of these infirmities, be declared illegal by Courts ? This was not claimed even by Mr. Brohi, learned counsel for the petitioners. Why should then this incident apply to an Ordinance ? Does the constitution of the legislative body (in one case the Provincial Assembly and in the other the Governor acting on the advice of his Council of Ministers) which enacts them entail any such consequence ? At least the framers of the Constitution have unequivocally expressed themselves against such an interpretation in so far as they declared that any Ordinance so made shall have the like force as an Act of the Provincial Legislature. Nor was any authority cited by the learned counsel for the petitioners in support of such a plea. In fact, so far as my memory goes, Mr. Brohi himself conceded that he was precluded from impugning the provisions of the two Ordinances on the plea of mala fides. His objection was confined to absence of satisfaction that circumstances' existed which rendered immediate action necessary to promulgate the impugned Ordinances. In support of it he relied upon some observations of their Lordships of the Judicial Committee in Emperor v. Banoari Lal Sarma and others (AIR1945PC48) and Emperor v. Sibnath Banerji and others (AIR1945PC156) and of the House of Lords' in Liversidge v, Anderson and another ((1941) 3 All E L R 338) and Greene v. Secretary of State ((1941) 3 All E L R 388).

6. Before dealing with these authorities and the reasonings of the learned counsel for the petitioners in support of the plea of mala fides, it is necessary to set out the pith and substance of the two impugned Ordinances. A perusal of the City of Lahore Corporation Act, the Punjab District Boards Act and the rules framed thereunder would disclose that formerly the members of these local bodies were elected, they held office for a fixed tenure and on its expiry they continued to function until new elections took place. In certain cases local bodies could be superseded for reasons of inefficiency, or corruption and their functions were entrusted to an `administrator'. First of all these provisions were altered to the extent that after the expiry of the fixed tenure, the members of local bodies would cease to hole office except in case where the Provincial Government may extend their office by a maximum period of six months. In the second, instance a provision was made that in case of supersession of local bodies or the expiry of the tenure of their members, the functions of the local bodies were to be taken over by an advisory body to be nominated by the Provincial Government instead of an administrator. It will be important to bear in mind the changes made in the parent Acts by the impugned Ordinances while considering the plea of mala fides and the dictum of the authorities on which reliance has been placed in support of it.

7. First of all it is important to bear in mind that except in the case of Emperor v. Benoari Lal Sarma the dictum in the remaining three cases is in relation to orders of executive nature. In Liversidge v. Anderson and Greene v. Secretary of State the appellants before the House of Lords had been detained under orders purporting to have been made under the Defence (General) Regulations, 1939, Regulation 18‑B. By Regulation 18‑B the Secretary of State was empowered to make an order for the detention of any person if he had reasonable cause to believe any person to be of hostile origin or associations or to have been recently concerned in acts prejudicial to the public safety or the defence of the realm or any preparation or instigation of any such act and that by reason thereof it was necessary to exercise control over him. The question for decision in both the appeals before their Lordships was whether the appellants were entitled to have a writ of habeas corpus directed to the Secretary of State. The main argument for the appellants was based upon the difference of language used as regards the belief of the Secretary of State in different sections of the Regulation and indeed in different parts of Regulation 18‑B. It was pointed out that in several places the Secretary of State is only required to be "satisfied of something". In this case it was conceded that there was no recourse to the Courts provided, of course, that the Secretary of State acted in good faith. The different phrase "has reasonable cause to believe", it was urged, pointed to a different standard and different meaning. The decision in the first case rested on the question whether an onus was thrown on the Secretary of State who made the order for detention, to give evidence to show that he had reasonable cause to believe the appellant to be a person of hostile association and that by reason thereof it was necessary to exercise control over him. The order on its face purports to be made under the Regulation, and it states that the Secretary of State had reasonable cause to believe the facts in question. On these facts Viscount Maugham, with whom the majority of the Judges agreed, expressed the following opinion:

"In my opinion, the well‑known presumption omnia acta rite essee praesumuntur applies to his order, and, accordingly, assuming the order to proved or admitted, it must be taken prima facie‑that is, until the contrary is proved‑to have been properly made, and it must be taken that the requisite as to the belief of the Secretary of State was complied with. It will be noted that, on the view I have expressed as to the construction of the regulation, it is the personal belief of the Secretary of State which is in question, and that, if the appellant's contention on this point were correct, the same question would arise in the numerous cases where an executive order depends on the Secretary of State or some other public officer being `satisfied' of some fact or circumstance. It has never, I think, been suggested in such cases that the Secretary of State or public officer must prove that he was so `satisfied' when he made the order." In Greene v. Secretary of State Lord Wright observed that there were no facts to enquire into. The only possible inquiry of facts, once the authenticity of the order and its application to the appellant were conceded or established, is as to whether the Home Secretary had in his own mind what appeared to his mind to be reasonable cause. In the following sentence, on which my learned brother has placed reliance, the learned Lord observed‑ "It is true that, in the words of Lord Bowen, the state of a man's mind is as much a fact as the state of his digestion. If the Home Secretary were to misrepresent the state of his mind, that would be fraud, but that is out of the question here, and need not be considered." In a separate judgment Lord Romer with reference to the decision in Liversidge's case observed that the words "if the Secretary of State has reasonable cause to believe" do not mean "if the Secretary of State has reasonable cause for his belief", but "if he is of opinion that there is such cause".

8. In Emperor v. Sibnath Banerji the respondents before the Judicial Committee had been detained under the Defence of India Rules. They were ordered, to be released by a Division Bench of the High Court of Judicature at Fort William in Bengal and the appeals preferred by the Crown from those orders were dismissed by the Federal Court. The decision of the High Court was based upon an earlier decision of the Federal Court Keshay Talpade v. Emperor (I L R 1944 Bom. 183) in which it was held, reversing the decision of the Bombay High Court refusing to make an order under section 491 for release of the applicants, that rule 26, Defence of India Rules, was ultra vires and was not warranted by the Defence of India Act; 1939. On 28th April 1943, the Governor‑General made and promulgated Ordinance No. XIV of 1943 under section 72 of Schedule 9, Government of India Act, 1935. By section 2 of the Ordinance, a new clause was sub stituted for clause (x) of section 2 (2), Defence of India Act, 1939. The amendment effected by section 2 of the Ordinance removed the grounds on which the Federal Court had pronounced rule 26 to be ultra vires. . The main question which fell for decision in this case by the Judicial Committee, therefore, was the vires of rule 26 and not male fides on the part of the Governor General who had enacted the Ordinance amending the Govern ment of India Act, 1935, or the framers of the Defence of India Rules. Two other questions which were argued at the Bar of their Lordships were, firstly, whether the orders of detention can be questioned in view of the provisions of section 59 (2), Government of India Act, and section 16, Defence of India Act, and, secondly, whether there were materials on which the Courts below could properly decide that the orders were not ,nail,; in conformity with rule

26. We are not concerned with tile first of these two questions, but as to the second their Lordships upheld the order for release of two of the respondents on the ground that the Home Minister had directed that on receipt of a report of arrest under rule 129, Defence of India Rules, together with a recommendation by the police for detention under rule 26 in respect of persons arrested in connection with the disturbances or suspected of being so connected, orders of detention under rule 26 (1) (b) should at once be issued as a matter of course subject to review by Government on receipt of further details to be supplied in each case by the Intelligence Branch. This, in the opinion of their Lordships, clearly meant the substitution of the recommendation by the police in place of the satisfaction of the Governor prescribed by rule 26 and equally rendered any order under rule 26 in conformity with the Home Minister's direction, to which their Lordships had already referred as the routine order, ab initio void and invalid as not being in conformity with the requirements of rule

26. The appeal of the Crown against the remaining four respondents was, however, allowed and their release orders set aside, because the aforementioned direction by the Home Minister had been issued subsequent to their arrest.

9. The last of these four cases relied upon by the learned counsel for the petitioner, Emperor v. Benoari Lal Sarnia, is the only instance in which an Ordinance promulgated by the Governor General of India was impugned on the ground that at the time of the promulgation of Special Criminal Courts Ordinance (11 of 1942) no emergency existed which conferred on the Governor General an authority to make and promulgate Ordinance for the peace and good government of British India or any part thereof. The Ordinance (lid not itself set up any of these Courts, but pro vided by section 1, subsection (3), that the Ordinance shall come into force in any Province only if the Provincial Government being satisfied of the existence of an emergency arising from any dis order within the Province or from a hostile attack on India or on a country neighbouring on India or from the imminence of such an attack, by notification in the official Gazette, declares it to be in force in the Province, and shall cease to be in force when such notification is rescinded. In view of this provision, it was contended that the Ordinance was invalid either because the language of the section showed that the Governor‑General, notwithstanding the preamble, did not consider that an emergency existed but was making provision in case one should arise in future, or else because the section amounted to what was called "delegate) legis lation", by which the Governor‑General without legal authority sought to pass the decision as to whether an emergency existed to the Provincial Government instead of deciding it for himself. Both these contentions were repelled, but earlier their Lordships, after setting out the provisions of para. 72 of Schedule 9, Government of India Act, 1935, observed that the paragraph did not require the Governor‑General to state that there was an emergency, or what the emergency is, either in the text of the Ordinance or at all, and assuming that he acts bona fide and in accordance with the statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists. This was followed by the description of circumstances which clearly made out a case of great emergency, viz., that Japan had declared war on the previous 7th December; Rangoon had been bombed by the enemy on 23rd December and again on 25th December; earlier Ordinances had recited that an emergency had arisen which required special pro vision being made to maintain essential services, to increase certain penalties, to deal with looting of property left unprotected by evacuation of premises, and so forth.

10. The dictum in the two House of Lords cases goes against the contention of the petitioners in the present case. It will be recalled that counsel for the appellants conceded that if the Secre tary of State was only required to be "satisfied of something", then there was no recourse to Courts, and in Article 102 of our Constitution the words used are "if the Governor is satisfied" and not "if circumstances exist which render immediate action neces sary". On this point the observation of Viscount Maugham is also very pertinent that if an executive order depends on the Secretary of 'State or some other public officer being "satisfied" of some fact or circumstance, it had never been suggested in such cases that the Secretary of State or public officer must prove that he was so "satisfied" when he made the order. It follows that if an authority cannot be required to prove his "satisfaction", the process by which he reaches that state of mind is subjective and not objective. In Greene v. Secretary of State the quotation from Lord Bowen's judgment that "the state of a man's mind is as much a fact as the state of his digestion" must,, therefore, be understood in this context. Reliance was also placed before us on the succeeding sentence of Lord Wright that "if the Home Secretary were to mis‑represent the state of his mind, that would .be fraud", but the learned Lord in concluding the sentence consi dered such a possibility as out of question. Now, if "satisfaction" is subjective, it need not conform to an external standard or criterion. What enquiry can a Court then hold to disprove it. One can envisage such absurd cases as the public officer concerned first making a note that he was not so "satisfied" and then making a false representation that he was. It was conceded before us that Courts could not make themselves into Judges of sufficiency of circumstances which rendered immediate action necessary within the purview of Article 102, but it was urged that it is a case of non existence of any single circumstance and Courts of law could hold an inquiry into such an allegation: It would indeed be very anamolous that whereas no evidence can be led to enquire into the state of mind of the Governor to measure the quantum of his "satisfaction", yet by evidence aliuende it can be proved that he was not at all "satisfied" and had acted mala fide either himself or on the advice of his Council of Ministers. At least of one thing I am quite certain that the text of the Ordinance, its impolicy and the injurious consequences which will flow from its provisions cannot be made the criterion for judging the state of mind of the Governor. I base this conviction on the concession rightly made by the learned counsel for the petitioners that apart from challeng ing the fulfilment of the pre‑condition for making of an ordinance by the Governor, he was not challenging. the provisions of the impugned Ordinances on the plea of mala fide. Indeed, he could not have done so, otherwise all the Acts of the Provincial Assembly and the National Parliament could have been brought before Courts on this ground and made the subject‑matter of prolonged litigation, thus causing great confusion in the country as to the legal rights and obligations of the citizens flowing from the impugned enactments. In the present case the whole argument of mala fide is based on the consequences which flowed from the provisions of the two Ordinances. Firstly, it was said that the setting up of the Commission under Ordinance XI of 1958 should not have resulted in stopping of elections to all the local bodies, par ticularly when no time limit had been fixed for the constitution of the Commission and submission of its report, secondly, the sitting members of the local bodies could have continued to function till the next elections were held, and, thirdly, that in place of an administrator, who is a public officer, the Government should not have secured for itself the authority to nominate its own stooges on advisory bodies for gaining political advantage. No one who believes in democracy and Local Self‑Government in the country can differ with this view, but what if a political party in Government differs with it. There is no mandatory provision in the Constitution which requires the Government to set up local bodies constituted of elected members. Such a measure is left to their political sagacity and good sense, but if they think other, wise and altogether abolish local bodies, is there any constitutional bar to it? As to the nomination of the so‑called stooges o: the Government on the advisory bodies if the Provincial Assembly can enact laws identical with the two impugned Ordinances which was not denied and no legal duty is cast, on the Government to nominate representatives of all the political parties in the country on the advisory bodies, then on what general principle car, Courts set aside such nominations. The action of the Govern‑ h ment may be highly imprudent. It might expose it to political odium in the country. But Courts of law have to enforce laws of the country and not to legislate on considerations of jurisprudence and policy. The nomination of the respondents on the advisory bodies of the Corporation of the City of Lahore and the District Board, Jhang, who were said to be the ardent supporters of the Republican Party and han4maids of the Government, cannot therefore, be a relevant consideration in the inquiry into the "satisfaction" of the Governor while judging the validity of the impugned Ordinances. Nor can these nominations be declared illegal and set aside on the plea of mala fides. 11. ‑ In Emperor v. Sibnath Banerji the orders for detention of two of the respondents were set aside notwithstanding that they recited "satisfaction" of the Governor because the instructions issued by the Home Minister conclusively proved that the impugned orders were not made in conformity with the requirements of Rule 26 of the Defence of India Rules. It is obvious that no such consideration arises in the present case and nothing more need be said about it in this order.

12. The last case, Emperor v. Banoari Lai Sarma, is more directly in point, because in it Ordinance XI of 1942 was challeng ed on the plea that no "emergency" within the purview of para. 72 of Schedule 9, Government of India Act, existed which alone empowered the Governor‑General to promulgate an Ordinance. First of all there is a marked difference between the language of Article 102 of our Constitution and para. 72 of Schedule

9. In the former it is said if the "Governor is satisfied" and in the latter "the Governor‑General may in case of emergency". Thus the Government of India Act did not provide for "if the Governor-General is satisfied that an emergency existed", but in spite of it their Lordships of the Judicial Committee held that the sole judge of the emergency was the Governor‑General and no recourse could be had to a Court of law to enquire into its existence. The observation "assuming that he acts bona fide", on which great stress has been laid on behalf of the petitioners, must now receive notice. It was contended that the observation was an authority for the proposition that Courts could hold an inquiry into good faith of the Governor and if satisfied that he had acted mala fide, the Ordinance promulgated by him would be declared void ab initio. Faced with the objection that under Article 213 the Governor of a Province was not answerable to any Court for the exercise of powers and performance of duties of his office or for any act done or purported to be done in exercise of those powers and perfor mance of those duties, and unless it was so, the Courts could not properly determine the state of his mind, it was pleaded that the Governor did not at all act except in cases in which Constitution directed him to act in his discretion. In the first instance, the provisions of Article 213 belie such an assertion because if in fact and law all acts are performed by the Council of Ministers and the Governor by virtue of Article 71 (7) merely lends his name to them, then Article 213 would be rendered negatory for I take it that its scope is not limited to acts which the Governor may perform in exercise of his individual discretion but all the acts which he may perform on advice or in exercise of his discretion. I am, therefore, of the view that the' acts which the Governor performs on the advice of his Council of Ministers are as much his own acts as those which he performs in the exercise of his dis cretion. Instances will not be wanting in which on the receipt of an advice the Governor has called for the appropriate Minister or Home Secretary and after discussion between them the proposal has been modified. The requirements that the Governor shall act on the advice of his Ministers, therefore, does not, preclude the mind of the Governor from determining the acts he is going to perform. Another way of looking at this proposition is whether in the absence of the provisions of Article 213 the Governor could claim discharge from a legal liability on the plea that he had acted on the advice of his Ministers. The answer must be in the negative, because qua all third parties the wrong, if any, resulting from an order of the Governor is attributable to him and he is in law liable for its remedy irrespective of the fact as to who had advised him in that behalf. In the light of the constitutional bar, contained in Article 213, would it not follow that Courts are precluded from judging the state of the Governor's mind for m order to do so, the Governor must be answerable to the Courts of law. This, of course, does not mean that all the acts of the Governor, whether performed by him or by other public officers in his name, cannot be challenged in Courts on other grounds. The proviso to Article 213 itself makes that provision, but surely in an appro priate proceeding against the Provincial Government the latte cannot testify to the state of mind of the Governor. If my analysis and interpretation of Articles 71 (7) and 213 is correct, then the observation of their Lordships of the Judicial Committee in Emperor v. Benoari Lal Sarma "assuming that he acts bona fide" which is in the nature of obiter dictum loses much of its force because there were provisions analogous to the aforesaid provisions of our Constitution in the Government of India Act, and their Lordships did not refer to them ;indeed for the simple reason that the plea of mala fide was never raised in that case. In Liversidge v. Anderson, the House of Lords did observe, "provided the Secretary of State acted in good faith", and no one can deny that all executive acts performed in abuse or excess of power can be set aside as mala fide acts, but as I have shown above, the "satisfaction" of the Governor under Article 102 is a legislative act and there is no means of enquiring into his state of mind.

12. Assuming, in the alternative, that "satisfaction" express ed by the Governor in the two impugned Ordinances \~as that of his Ministers and Article 213 is not a bar to enquire into it,' I have earlier observed that there is no proper material before this Court on which a decision could be recorded that in giving their advice to the Governor they had acted malafide. It is not denied that they could have similar Acts passed by the Provincial Assembly and in that event the petitioners could not challenge them on the plea of mala fide. I have also shown that in law same characteristic must be attributed to the Ordinances in ques tion. The text of the impugned Ordinances, therefore, cannot be made the proper basis for determining the mala fides of the Ministers in advising the Governor to promulgate them. There is no other material before us. The petitioners did not care to examine the Ministers responsible for the promulgation of the Ordinances, nor did they summon any document or file from the respondents to substantiate their plea, The Attorney‑General did bring to our notices the departmental file relating to the promul gation of the impugned Ordinances, but so far I could see there was nothing in it which per se proved that the Ministers concerned had acted in bad faith. It is, of course, undeniable that, under the Constitution Ministers alone are the judges of what advice they will tender to the Governor and the Constitution has specifically provided that Courts cannot enquire into what advice, if any, was given by them. If that be so, how can we determine that the advice which the Ministers gave in is case to the10 Governor to promulgate the two impugned Ordinances was mala fide. I am accordingly of the view that Courts cannot enquire' into the "satisfaction" of the Governor while promulgating and Ordinance and declare it illegal on the plea of mala fide. In support of this view, I would like to cite the following observa tions of their Lordships of the Judicial Committee in Emperor v. Benoari Lal Sarma, a case on which so much reliance has been placed on behalf of the petitioners :‑ "With the greatest respect to these eminent Judges, their Lord ships feel bound to point out that the questions whether the Ordinance is intra vires or ultra vires does not depend on consi derations of jurisprudence or of policy. It depends simply on examining the language of the Government of India Act and of comparing the legislative authority conferred on the Governor-General with the provisions of the Ordinance by which he is purporting to exercise that authority. It may be that as a matter of wise and well‑framed legislation it is better if circum stances permit to frame a statute in such a way that the offender may know in advance before what Court he will be brought if he is charged with a given crime ; but that is a question of policy, not of law. There is nothing of which their Lordships are aware in the Indian Constitution to render invalid a statute, whether passed by the Central Legislature or under the Gover nor‑General's emergency, powers, which does not accord with this principle". The following observations of their Lordships in Labrador Com pany v. The Queen (1893 L R 104 at p. 123) may also be reproduced with advantage in this behalf :‑ "In this state of things the Legislature of the Province of Canada, deeming it expedient to abolish all feudal rights and duties in Lower Canada, passed for this purpose the Seigniorial Act of 1854 (18 Viet. c. 3), amended by the Act of 18 Vict. c. 103 (1855), and the Seigniorial Amendment Act of 1856 (19 Vict. C. 53). The 10th section of this last‑mentioned Act is as follows :‑ Inasmuch as the following fiefs and seigniories, namely, Perthuis, Hubert, Mille Vaches, Mingan, and the Island of Anticosti, are not settled, the tenure under which the said seigniories are now held by the present proprietor of the same respectively, shall be and is hereby changed into the tenure of france aleu roturier'. This is an absolute statement by the Legislature that there was a seigniory of Mingan. Even if it could be proved that the Legis lature was deceived, it would not be‑ competent for a Court of law to disregard its enactments. If a mistake has been made, the legislature alone can correct it. The Act of Parliament has declared that there was a seigniory of Mingan, and that thence forwarded its tenure shall be changed into that of franc aleu roturier. The Courts of law cannot sit in judgment on the legis lature, but must obey and give effect to its determination". Earlier their Lordships has expressed the opinion that the facts proved failed to establish that there was a seigniory of the main land of Mingan, or that the Crown has recognised its existence, although, chiefly from the supposed act of foi et hommage of 1781 containing the erroneous statement of the effect of the grant of 1661, a reputation had arisen that there was such a seigniory. The principle on which the Courts are debarred from sitting in judgment on the Legislature, therefore, is not that it is not P possible or it is extremely difficult to prove that its members had acted mala fide; or that a fraud was played upon them, or that they had made a mistake, but that Courts being themselves creatures of law must give effect to the laws of the country irrespective of the considerations of jurisprudence or of policy and that intra vires or ultra vires of an Act or an Ordinance depend simply on examin ing the competence of the legislative authority which enacts them and by no other criterion. The Indian High Courts are also of the same view and some of their judgments which were cited by the learned counsel for the respondents have been noticed by my learned brother in his separate judgment. It is, therefore, unnecessary to mention them here, but before concluding this judgment I feel tempted to reproduce the following passage at page 715 of the Third Edition of Basu's Commentary on the Constitution of India, under Article 123 :‑ "The satisfaction referred to in this clause is the satisfaction of the President. The President is not bound to expound reasons for promulgating an Ordinance or to prove them affirmatively in a Court of law. He is the sole judge of the question whether circumstances exist which call for immediate legislation by Ordinance. The existence of such necessity is not a justiciable matter which the Courts could be called upon to determine by applying an objective test. Even if the President states the reasons which satisfied him as to the necessity of immediate action, the Courts cannot question the bona fides of such action".

13. On the view I have expressed above, all three petitions, which are the subject‑matter of this order, must fail, but, in the circumstances of the case, I would leave, the parties to bear their own costs. KAIKAUS AND YAQUB ALI, JJ.--‑The impugned Ordinances have been superseded by Acts of the legislature and are no longer in force. These petitions have therefore become infructuous and are dismissed as such without any order as to costs. A. H. Petitions dismissed.